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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) Lifeline and Link Up ) WC Docket No. 11-42 Reform and Modernization ) ) Lifeline and Link Up ) WC Docket No. 03-109 ) Federal-State Joint Board on ) CC Docket No. 96-45 Universal Service ) REQUEST FOR CLARIFICATION AND DECLARATORY RELIEF On February 22, 2012, TracFone Wireless, Inc. ("TracFone") filed with the Commission an Emergency Petition for Declaratory Ruling and for Interim Relief. That petition was occasioned by the Puerto Rico Telecommunications Regulatory Board's ("Board") recent directives to TracFone and to other Eligible Telecommunications Carriers ("ETCs") to de-enroll from their federal Lifeline programs all Puerto Rico Lifeline customers identified by the Board as "duplicates," i. e., persons enrolled in multiple Lifeline programs, and to prohibit such de-enrolled consumers from obtaining any Lifeline-supported service for specified periods, in violation of Section 54.405(e) of the Commission's rules and the policies articulated by the Commission in its June 21 Order. I By public notice issued February 27, 2012, the Commission invited comment on that Emergency Petition.2 TracFone and other ETCs each received two directives issued by the Board -- one dated January 30, 2012 (based on Social Security Numbers), the other dated February 7, 2012 (based on residential addresses). Those directives instructed ETCs to de-enroll all duplicates on March I Lifeline and Link Up Reform and Modernization, et ai, 26 FCC Rcd 9022 (2011) ("June 21 Order"). 2 Public Notice - Comment Sought on TracFone Wireless, Inc. Emergency Petition for Declaratory Ruling and Interim Relief, DA 12-295, released February 27,2012. 1,2012, and April 1,2012 respectively, and that such de-enrolled duplicates would be prohibited from receiving Lifeline benefits for prescribed periods of time. 3 Several parties, including the Board, filed comments on the Emergency Petition and the Board has announced various changes to its policies and procedures governing Lifeline in Puerto Rico, including changes regarding de-enrollment and re-enrollment. Attached to the Board's March 9 comments is a resolution and order issued by the Board on March 7, 2012.4 In the March 7 Order, the Board revised its prior debarment of de-enrolled duplicates from receiving any Lifeline-supported service for four months by allowing such de-enrolled customers to re- enroll without waiting four months. However, such de-enrolled customers may only re-enroll in the Lifeline program of the ETC to whose service the Lifeline "subsidy was first applied." In other words, de-enrolled Lifeline customers could avoid the four month No Lifeline Service penalty only if they re-enroll in the Lifeline program of the ETC from whom they obtained Lifeline service first -- in virtually all instances, the incumbent wireline local exchange carrier. Under the Board's requirements set forth in the March 7 Order, consumers de-enrolled on March 1 would lose their right to select their preferred Lifeline provider. Instead, that selection would be made for them by the Board. Moreover, the March 7 Order expressly forbade ETCs from sharing information about the Board's changed policy with their de-enrolled customers. In the words of the Board, "[t]he Board will be the only entity authorized to announce said resolution to the consumers, by the 3 Initially such de-enrolled duplicates were to be barred from receiving Lifeline support for one year. However, in a March 7, 2012 resolution and order, the Board revised that debarment period to four months. Subsequent to the filing of TracFone's Emergency Petition, the Board has issued a third de-enrollment directive on March 14. That directive instructs ETCs to de-enroll additional Lifeline customers on May 1,2012. The stated reason for the May 1 de-enrollments is failure to provide certain information, i.e., second last names and full 9 digit Social Security numbers. 4 In re: Universal Service Fund, Lifeline/Link Up, (Resolution and Order) Case No. JRT-2001- SU-0003, issued March 7, 2012 ("March 7 Order"). 2 means it deems appropriate."s By its terms, the Board's March 7 Order, including the announced changes regarding re-enrollment by de-enrolled duplicates and permissible communications with such de-enrolled consumers was applicable only those consumers de-enrolled from all Lifeline- supported services by March 1,2012 in accordance with the Board's January 30, 2012 directive. The March 7 Order is not applicable to those de-enrollments which occurred on April 1 pursuant to the Board's February 7, 2012 directive. By this request, TracFone hereby brings to the Commission's attention more recent developments which raise further questions about the Board's treatment of Lifeline consumers it labels as "duplicates." Specifically, the Board now has sent notices to consumers who were de- enrolled on March 1. Those notices are dated March 26, 2012 and are signed by Sandra E. Torres Lopez, President, and by Ciorah 1. Montes Gierboni, Secretary. Those March 26 notices appear to modify and contradict prior Board orders and directives. Attached to this request as Attachment A are copies of the Board's March 26 notice in English and in Spanish.6 The Board's March 26 notice states, in relevant part, that " ... those who received the communication informing them that their subsidy service would be suspended by March 1, 2012, can immediately request, with the company of their preference, only one subsidy for wireline or wireless service per person, as long as they comply with the criteria for eligibility." (emphasis added). In addition, the notice informs consumers de-enrolled on March 1 that "if your wireline or wireless provider does not inform you correctly, you may visit the Telecommunications Board of Puerto Rico offices personally or you may request information by sending a letter to [the Board]" (emphasis added). S Id, at 2 (emphasis original). 6 Although TracFone has obtained a copy of the March 26 notice, it does not know to whom those notices were sent. Specifically, it does not know whether the notices were sent to all consumers de-enrolled on March 1 or to only some consumers who were de-enrolled on March 1. 3 By indicating that consumers may now request immediate re-enrollment with the company of their preference, the Board's March 26 notice would appear to contradict the Board's March 7 Order which expressly limited re-enrollment to the Lifeline service of the ETC who served the customer first. Also, the notice's statement about contacting the Board if the consumer's wireline or wireless company does not inform the consumer correctly seems to suggest that wireline and wireless ETCs may communicate with their de-enrolled Lifeline customers. That too would contrapict the March 7 Order which prohibited anyone except the Board from contacting de-enrolled consumers. TracFone is aware of no resolution and order issued by the Board which modifies the March 7 Order and does not know whether or not the March 26 notice signed by only one Board member reflects a valid and legally binding action of the Board. Accordingly, it has no way of determining whether it may lawfully rely upon that March 26 notice in operating its Lifeline program in Puerto Rico. To the extent that the March 26 notice reflects a change in Board policy so as to allow each de-enrolled Lifeline customer to re-enroll immediately in the Lifeline program of his/her preferred ETC, that would be a positive development. So too would the Board's apparent recognition of ETCs' right to communicate with their de-enrolled customers -- a right which the Board purported to deny ETCs in its March 7 Order. However, the March 26 notice raises many questions which need to be clarified. First, to what categories of de-enrolled Lifeline customers do the changes set forth in the March 26 notice apply? By its terms, the notice refers only to those consumers who were de­ enrolled by March 1, 2012 (i.e., those identified in the Board's January 30 letter). The notice does not reference either those consumers who were de-enrolled on April 1 as required by the Board's February 7 letter, or to those consumers subject to the March 14 letter from the Board who are to be de-enrolled by May 1. Those latter two categories appear to remain subject to the 4 Board's mandatory debarment period of either four months or one year. In addition, nothing to date issued by the Board indicates that those consumers who were de-emolled on April 1 (as directed by the Board's February 7 letter) and those consumers who are to be de-emolled on May 1 (as directed by the Board's March 14 letter) will be allowed to re-emoll either immediately, after four months, or at any other time, in the Lifeline program of any ETC other than the ETC who first provided the consumer with Lifeline-supported service. Furthermore, TracFone brings to the Commission's attention the prefatory language in the second paragraph of the notice: "For this and other reasons not attributable to consumers . ..." What is not attributable to consumers? That consumers were emolled in multiple Lifeline programs? The implication of this statement is that duplicate emollment is attributable to someone else. Is the Board referring to ETCs? If so, which ETCs? Implicit in that statement is an assertion that ETCs, including TracFone, have done something improper in violation of law. That seems to be what the Board's notice is communicating to consumers. TracFone cannot comment on the conduct of any other ETCs, but it can represent to the Commission that on all occasions it has operated its Lifeline program in Puerto Rico and all other states where it is an ETC in compliance with all applicable laws, regulations and conditions of ETC designation.

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